Hofflund v. Journal Co.

60 N.W. 263, 88 Wis. 369, 1894 Wisc. LEXIS 44

• Court: Wisconsin Supreme Court
• Decided: October 2, 1894
• Status: Published

Opinion

Oeton, C. J.

This is an action for libel. The publication is as follows:

“SPOILED A SENSATION.

“AN Alleged Shoetage at West Superioe Settled by Bondsmen.

“West Supeeioe, Wis., Feb. 6. A rather sensational feature was promised for the meeting of the county board this afternoon. It is alleged that there was a deficit of $2,500 in the accounts of Ex-County Treasurer Dan Hoff-lund. The supervisors claimed that the books were short $2,500. It is claimed, however, for Mr. Hofflund that this was for fees collected which belonged to the office and not to the county. The matter was settled by the bondsmen before the meeting of the board.”

The answer is in justification.

1. The defendant objected to any evidence under the complaint on the ground that it stated no cause of action. The objection was overruled. There is no special damage alleged. There is an allegation that the words mean that the plaintiff was “ guilty of having embezzled and converted to his own use $2,500, money belonging to the said county of Douglas.” The meaning of the words cannot be enlarged by innuendo. The publication is not actionable per se. It does not impute the crime of embezzlement. It is only, in effect, that there was a deficit in the plaintiff’s accounts of $2,500, which he claimed was for fees collected which did not belong to the county but to the office; and this is not disputed in the publication. The matter was settled before it came before the board. There was no demand for the money or for an accounting, or refusal to pay on demand, charged. The language is far short of embezzlement or of any other crime. The objection should have been sustained.

2. The court directed a verdict for the defendant on .the evidence, and did right in doing,so. Whatever the charge ivas, it was more than proved true. The plaintiff failed to pay over to his successor, as clerk of the circuit court, $2,500, money in his hands, which his successor was entitled to receive from him on the 2d day of January, 1893, for about a month afterwards. His successor often requested him to pay over the. money, and he said he did not have it; that his bondsmen had it.. The bondsmen finally paid the plaintiff the $2,500, and the plaintiff paid it over to his successor on February 4, 1893. The plaintiff, as a witness called by the defendant, refused to answer many of the most material questions, on the ground that his answers might criminate him, but produced the receipt of Mr. Thompson, his successor, dated the 4th day of February, 1893, for the sum of $2,500 in trust funds. It is not pleasant to speak of the testimony in this case. It certainly more than justifies the publication.

By the Court.— The judgment of the circuit court is affirmed.